By: Jeffrey Klein, Political Buzz Examiner
Examiner.com

During a recent press conference, a reporter asked President Obama if he believes that he has created a “virtual monarchy,” based on the reporters view (shared by many) of the expanded theory of executive power that seems to have been adopted by the president.

The reporter did not receive a reply.

Back in 2008, candidate Sen. Barack Obama famously said: “This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing and end run around Congress,” according to Phil Kerpin’s FOXNews article yesterday.

Obama now says: “I refuse to take ‘No’ for an answer… when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.”

Yesterday, President Obama made four, very controversial, “Recess Appointments” placing appointees into government positions, in total circumvention of the Constitutional mandated they Senate confirmation process–even though the Senate was not technically in recess.

Recess appointments were designed by the Framers of the U.S. Constitution, against the back drop of the 16th Century, where lawmakers were spread across the country, physically unable to convene, in person, for months at a time. They recognized that this could, from time to time, create a serious hardship for the President in trying to install all of the leadership people necessary to operate the government effectively. However, to establish some modicum of Senate oversight, these appointments were only valid until the end of the next session of the Senate.

President Obama has taken his “new understanding of the law” beyond the traditional legal interpretations of Article I, Section 5 of the Constitution, which has to do with the definition of “Recess,” which states: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”

In 1993, during a recess appointment controversy under President George H.W. Bush, the [Senate] chamber’s lawyer took apart the appointments clause.

“[T]he word ‘recess’ is worded in the singular, not the plural,” the chamber’s lawyer stated, adding, “(T)he Framers specified that the clause applies to ‘all Vacancies,’ the Framers chose not to state similarly that the Clause applies ‘during all Recesses.’ The logical inference from their conspicuous avoidance of the word ‘all’ is that the Framers did not intend the recess appointment power to apply during each and every possible adjournment of the Senate,” according to reporting in Trish Turner’s FOXNews article yesterday.

A 1993 legal brief from the Clinton Justice Department, defined “recess” as any time Congress adjourned for longer than three days, in order for the president to capitalize on his “recess appointment power.”

Two Bush-era lawyers, John Elwood and Steven Bradbury, called such a strategy “phony” in a 2010 Washington Post op-ed, and said, “The president can use this power to fill a vacancy during any recess between sessions of Congress as well as recesses during sessions of Congress, if they are of substantial length.”

Even Obama’s former Solicitor General, Elena Kagan, who sits on the U.S. Supreme Court, wrote to the Supreme Court on April 26, 2010 ..: “Although a President may fill such vacancies through the use of his recess appointment power … the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period.

And this is exactly what Senate Republicans have done during the holiday period, “gaveling” in and out of “pro forma sessions” every three days, but not formally adjourning the chambers.

In fact, the Senate conducted serious legitimate business during these pro forma sessions, including the two-month extension bill for payroll tax and unemployment benefits, and the appointment of conferees to a payroll tax-related conference, which were all over the media at Christmas time and heading toward New Years Eve.

The above periodic bi-partisan dissections of Constitutional Law, as well as the voluminous history of traditional interpretations and use in the past, seem to indicate that having to wait three whole days for the Senate to reconvene, especially during the holidays, does not meet the burden of risk to either the country or President Obama–thereby activating his executive powers to make recess appointments.

Therefore, in his own, pre-inaugural words, President Barack Obama can not “make up laws as he goes along.” However, that is exactly what he has done, in view of his recent conniving behavior, placing him on a legal and public relations collision course with GOP Republicans and the public.

Copyright (c) 2012 by Jeffrey Klein